Annulation d'un marché public pour suspicion de conflit d'intérêts

Cancellation of a public contract for suspicion of conflict of interest

by gmorales on October 22nd, 2015 | Category: Public markets
Annulation d'un marché public pour suspicion de conflit d'intérêts Annulation d'un marché public pour suspicion de conflit d'intérêts

Annulation d'un marché public pour suspicion de conflit d'intérêts CE 14 October 2015, Nord Pas de Calais region, req.no. 390968
In this case, the Council of State recalls that a public contract concluded in breach of a potential conflict of interest is void if it is a breach of the general principle of impartiality.

Rule No 1: Reminder of the concept of conflict of interest within the meaning of Community law and national law

At Community level, Article 24 of Directive 2014/24 / EU on the award of public contracts provides a very broad definition of the concept of conflict of interest by at least addressing any situation in which staff members of the contracting authority or a provider of procurement services acting on behalf of the contracting authority who participate in the course of the procedure or are likely to influence the outcome have, directly or indirectly, a financial, economic or other personal interest which might be perceived as compromising their impartiality or independence in the context of the procurement procedure.
Thus, according to Article 24 of Directive 2014/24 / EU, the persons likely to be concerned thus target all the staff members of the contracting authority who take part in the procedure or are likely to influence the outcome of the procedure. ;
At the national level, Article 2 of Law No. 2013-907 of 11 October 2013 on the transparency of public life for the first time provides an objective definition of the conflict of interest by targeting any situation of interference between a public interest and public or private interest that is likely to influence or appear to influence the independent, impartial and objective exercise of a function ".
In the end, within the meaning of the law, the conflict of interests can be defined as a situation of interference between a public service mission and the private interest of a person who contributes to the exercise of this mission, when interest, by its nature, can reasonably be regarded as likely to influence or appear to influence the independent, impartial and objective exercise of its functions.
Failure to comply with these provisions constitutes an offense of unlawful taking of interest punishable under Article R 432-12 of the Penal Code.

Rule n ° 2: a potential conflict of interest invalidates a public contract

In a judgment dated November 3, 1997, Préfet de la Marne, the Council of State has already had the opportunity to consider that the son of the leader of a candidate for a procedure of publicity and competition can not sit within the tendering commission responsible for selecting tenders without constituting a conflict of interest (EC 3 November 1997, Préfet de la Marne, n ° 148150).
In its decision of 14 October 2015, Nord Nord Pas de Calais, the Council of State recalls that the principle of impartiality, a general principle of law, is binding on the contracting authority at all stages of the advertising and publicity process. in competition. A person who participated in the drafting of the special technical clauses and the analysis of the candidates' offers, while having held important responsibilities within the awarded company, until less than two years before the launching this procedure presents a risk of conflict of interest. Even if this person no longer holds any interest in the company awarded the contract, the very recent nature of their collaboration, at a high level of responsibility, could legitimately give rise to doubt about the persistence of such interests and consequently the impartiality of the procedure followed by the contracting authority.

Board of state
No. 390968
ECLI: FR: CESSR: 2015: 390968.20151014
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr Olivier Henrard, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP FOUSSARD, FROGER; SCP NICOLAY, DE LANOUVELLE, HANNOTIN; SCP PIWNICA, MOLINIE, lawyer (s)
Reading of Wednesday, October 14, 2015

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedures:
On 22 April 2015, RevetSens asked the pre-contractual judge of the Lille administrative court to set aside the procedure launched by the Nord-Pas-de-Calais region for the award of a contract for the further dematerialization of the "checkbooks books region" and "checkbooks equipments of apprentices" by the establishment of a multiservice card "Generation Nord-Pas-de-Calais".

By an order n ° 1503492 of May 28, 2015, the judge of the pre-contractual summary of the administrative court of Lille canceled the procedure of procurement of the litigious market.

1 ° Under No. 390968, by a summary appeal, a supplementary memorial and a reply, registered on 12 and 26 June and 1 October 2015 to the litigation secretariat of the Conseil d'Etat, Applicam NV asks the Council to State:
1 °) to cancel this order;
2 °) ruling in summary proceedings, to reject the application of RevetSens;
3 °) to charge the company RevetSens the sum of 5,000 euros under Article L. 761-1 code administrative justice.
2 ° Under the n ° 391105, by a summary appeal and a complementary memory, registered on June 17 and July 2, 2015 in the litigation secretariat of the Council of State, the Nord-Pas-de-Calais region asks the Council of State :
1 °) cancel the same order;
2 °) ruling in summary proceedings, to reject the application of RevetSens;
3 °) to charge the company RevetSens the sum of 5,000 euros under Article L. 761-1 code administrative justice.
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Considering the other parts of the files;
Viewed:
- Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Olivier Henrard, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Foussard, Froger, lawyer of the Applicam SA, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the region Nord-Pas-de-Calais and to the SCP Piwnica, Molinié, lawyer of RevetSens;

Considering the notes under deliberation, recorded on October 5, 2015, presented by Applicam SA;

1. Considering that under Article L. 551-1 of the Code of Administrative Justice, in its wording applicable to the procedure followed before the Administrative Court of Lille: "The president of the administrative court, or the magistrate he delegate, may be seized in the event of failure to comply with the publicity and competitive bidding requirements imposed by the contracting authorities on administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, the delegation of a public service or the selection of a shareholder operator of a single-purpose mixed economy company. / The judge is seized before the conclusion of the contract. " that according to the I of Article L. 551-2 of the same code: "The judge can order the author of the failure to comply with its obligations and suspend the execution of any decision that relates to the execution of the contract, except where it considers that, in view of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. It may, moreover, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to appear in the contract which do not comply with those obligations. " that finally, the article L. 551-3 of this code states that: "the president of the administrative court or his delegate rule first and last resort in the form of the referred. "

2. Considering that the documents in the file submitted to the judge hearing the application for interim relief show that, on 6 February 2015, the Nord-Pas-de-Calais region launched an open tendering procedure with a view to awarding a contract with orders for the implementation of a dematerialized card "Generation Nord-Pas-de-Calais", intended to replace the existing devices of "books books region" and "checkbooks equipment apprentices"; that, on April 9, 2015, the president of the regional council informed the company RevetSens of the rejection of its offer and the award of the contract to Applicam SA; that the society RevetSens seized the judge of the pre-contractual summary of the administrative court of Lille, which canceled the procedure by an order of May 28, 2015; that, by appeals that must be joined, Applicam SA and the Nord-Pas-de-Calais region seek the annulment of this order;

3. Considering that, to cancel the procedure on the grounds that the Nord-Pas-de-Calais region had secured the collaboration, as assistant to the contracting authority for the preparation of the disputed market documents and analysis of offers of the candidates, of MA, former head of Applicam SA, the successful tenderer, and that such a circumstance was likely to give rise to a legitimate doubt as to the impartiality of this procedure, the judge of the pre-contractual is based on the definition of the conflict of interest laid down in Article 24 of the Directive of the European Parliament and of the Council of 26 February 2014 on the award of public contracts; that in so doing, whereas on the date on which the contested procedure was launched, that directive had not been transposed, that its transposition period, the term of which was 18 April 2016, was not expired and that the award of the contract, which is an individual decision, could not be regarded as seriously prejudicing the achievement of the result prescribed by that directive, he erred in law; it follows from this that, without it being necessary to examine the other grounds of the appeals, the order under appeal must be set aside;

4. Considering that it is necessary, in the circumstances of the case, to rule on the application for interim measures made by the society RevetSens in application of the provisions of Article L. 821-2 code administrative justice;

5. Considering that among the general principles of law which apply to the contracting authority as well as to any administrative authority is the principle of impartiality, the lack of which constitutes a breach of the obligations of publicity and competition; that in this case, it follows from the investigation that, on the one hand, MA .., charged by the region of a mission of assistance to the contracting authority for the market litigious, has not only contributed the drafting of the special technical clauses, but also the analysis of the candidates' offers alongside the services of the region and that it was thus likely to influence the outcome of the procedure in dispute; that, on the other hand, MA ... had significant responsibilities within Applicam NV, as quality manager and then director of operations and projects, and that having held these positions from December 2001 to the month from April 2013, he left the company less than two years before the start of the litigation; that if it does not follow from the investigation that the person concerned still holds interests in the company, the very recent character of their collaboration, at a high level of responsibility, could legitimately give rise to doubt about the the persistence of such interests and, consequently, the impartiality of the procedure followed by the Nord-Pas-de-Calais region; that it was moreover permissible for the region, which knew of the quality of former employee of Applicam SA of MA .., to implement, once known the application of this company, any measure to lift this legitimate doubt, for example by excluding it from the tender analysis procedure; that in these circumstances, the Nord-Pas-de-Calais region has failed to comply with its advertising and competition requirements; whereas, consequently, it is necessary, without it being necessary to examine the other grounds of the application, to annul the contested procedure;

6. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount to be charged to RevetSens which is not, in the present case the losing party; that in the circumstances of this case it is not necessary to accede to the claims made by that company under the same provisions;

DECIDE:
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Article 1: The order of 28 May 2015 of the Judge of the Court of Administrative Court of Lille is annulled.
Article 2: The procedure of awarding the contract for the continuation of the dematerialization of "books books region" and "checkbooks equipment apprentices" by the establishment of a multiservice card "Generation NPDC", launched by the region Nord-Pas-de-Calais, is canceled.
Article 3: The conclusions of Applicam SA, the Nord-Pas-de-Calais region and the company RevetSens presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 4: This decision will be notified to Applicam SA, to the Nord-Pas-de-Calais region and to RevetSens.

Summary :
The principle of impartiality, a general principle of law, is binding on the contracting authority as on all administrative authorities. A person has participated in the tender procedure for a contract under conditions that allow him to influence the outcome of the contract. contentious procedure (contribution to the drafting of the special technical clauses and the analysis of the candidates' offers), whereas it had exercised important responsibilities within the awarded firm, until less than two years before the launching this procedure. Even if this person no longer holds any interest in the company awarded the contract, the very recent nature of their collaboration, at a high level of responsibility, could legitimately give rise to doubt about the persistence of such interests and consequently the impartiality of the procedure followed by the contracting authority.